Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE L. BENSENHAVER, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Kathy Lyons to the Murray-Calloway County Animal Shelter on April 10, 1996. Ms. Lyons requested access to monthly financial reports for calendar year 1995 and calendar year 1996. n1 She indicates that she did not receive a written response within three working days as required by KRS 61.880(1). Nevertheless, it is her position that the animal shelter is a public agency for purposes of the Open Records Act, and must release its financial reports. In support of this position, she cites KRS 61.870(1)(h), noting that her review of the county budget for fiscal year 1995-1996 discloses that the county budgeted $ 20,830.00 for the shelter, of a total shelter budget of $ 75,000.00. 2
1Having received no written response to her open records request, on April 23, 1996, Ms. Lyons initiated this appeal. On May 1, 1996, this office notified the Murray-Calloway County Animal Shelter that an open records appeal had been filed pursuant to KRS 61.880(2). By letter dated May 3, 1996, we requested additional information from the animal shelter pursuant to KRS 61.880(2)(c). We asked that a representative of the shelter document how it was created and from what sources it derives its funding. In particular, we asked for any record or records which reflect the animal shelter's annual budget, and the proportion of funds it receives from state or local authority.
On behalf of his client, the Murray-Calloway County Humane Society, attorney C. Mark Blankenship responded to this request. He explained:
The animal shelter is owned by Calloway County. In 1987, Calloway County through its Fiscal Court, entered into a year-to-year agreement with the Humane Society, a private nonprofit corporation, for the operation of said shelter. The Society receives approximately $ 1,300 per month from Calloway County in support of the operational costs of the shelter. The City of Murray provides no direct financial support, but does pay the salary of the Animal Control Officer who brings animals to the shelter. The Humane Society operates on a budget of approximately $ 75,000. . . .
Mr. Blankenship agreed to furnish this office with a copy of the Humane Society's "most recent budget. " It was his position that because the Society does not receive at least 25 percent of its funding from Calloway County, it is not a public agency for purposes of the Open Records Act.
In a subsequent letter, Kathy M. Hodge, president of the Humane Society of Calloway County, provided additional insight into the creation and funding of the animal shelter. She reiterated that the Humane Society has operated the shelter under contract with the Calloway County Fiscal Court since shortly after the Humane Society was formed. Continuing, she observed:
There is no financial report specifically related to the animal shelter since we operate the shelter by contract with the Calloway County Fiscal Court and it is only one of the programs of the Humane Society of Calloway County.
Ms. Hodge summarized the sources providing funding, and the amounts they provide, as follows: United Way $ 9,000; Calloway County $ 15,000; Society $ 36,000. She enclosed a copy of the Society's "most recent fiscal year-end financial report."
That document consists of a 1994-95 excess revenue/loss report, and a revenue and expense budget form for fiscal years 1993-94, 1994-95, and 1995-96, which the Humane Society submitted to the United Way of Murray-Calloway County. The latter record confirms that the Humane Society received, or will receive, $ 15,200 from governmental agencies, presumably the Calloway County Fiscal Court, in the current fiscal year, and that its budget for the year is $ 76,525. Although there is some discrepancy between these figures, and the figures provided by Mr. Blankenship, 3 it appears that the Humane Society derives less than 25 percent of the funds it receives for support of the animal shelter from state or local authority funds. KRS 61.870(1) provides:
(1) "Public agency" means:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
If an entity falls within one or more of these definitional subsections, it is subject to the Open Records Act, and is required to comply with the Act. This office has consistently recognized that a private not for profit corporation comes within the purview of the Open Records Act only if it derives 25 percent of its funds from state or local authority. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; OAG 92-ORD-1114; 94-ORD-98. Conversely, where evidence is introduced that an agency receives less than 25 percent of its funds from state or local authority, the Attorney General has not deemed it a "public agency. "
Our review of the information furnished to us discloses that the Murray-Calloway County Animal Shelter is operated by the Murray-Calloway County Humane Society, a private not for profit corporation, under contract with the fiscal court. Records of the shelter, including financial records, are also maintained by the Humane Society. In 1995-96, the Humane Society will receive approximately 20 percent of its funding from the fiscal court. This proportion of its funding does not meet the 25 percent threshold set forth in KRS 61.870(1)(h). In the absence of clear and convincing evidence to the contrary, we must assume the truthfulness of these figures. Although Ms. Lyons asserts that the county has budgeted $ 20,830 for the animal shelter, she offers no documentary evidence to support this assertion. We must therefore conclude that the Humane Society is not a "public agency" within the meaning of KRS 61.870(1), and is not subject to the Open Records Act. Although it is discharging a public function, i.e., operating the county animal shelter, nothing in the Open Records Act compels disclosure of its records.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
2 Ms. Lyons indicates that this figure is based on a statement made by Humane Society president Kathy Hodge at a recent public meeting. However, she offers no documentary evidence to support either of these figures.
1 In addition, Ms. Lyons requested various items of information. Because this information was subsequently released to her, we do not address the issue of public agency compliance with a request for information except to note that, in general, such requests need not be honored under the Open Records law. See, e.g., OAG 89-61; OAG 90-100; OAG 92-121.
3 Based on the figures Mr. Blankenship provided us with, we calculate that the Humane Society will receive $ 15,600 from the Fiscal Court in fiscal year 95-96.